(c) Investigate potentially unlawful
death, ensure accountability
and remedy violations. The duty to
investigate is an essential part of upholding
the right to life.23 The duty gives practical
effect to the duties to respect and protect the
right to life, and promotes accountability
and remedy where the substantive right may
have been violated. Where an investigation
reveals evidence that a death was caused
unlawfully, the State must ensure that
identified perpetrators are prosecuted and,
where appropriate, punished through a
judicial process.24 Impunity stemming from,
for example, unreasonably short statutes
of limitations or blanket amnesties (de jure
impunity), or from prosecutorial inaction or
political interference (de facto impunity), is
incompatible with this duty.25 A failure to
respect the duty to investigate is a breach of
the right to life. Investigations and prosecutions
are essential to deter future violations and to
promote accountability, justice, the rights to
remedy and to the truth, and the rule of law.26
9.
Depending on the circumstances, States also have
a duty to cooperate internationally in investigations
of potentially unlawful death, in particular when
it concerns an alleged international crime such as
extrajudicial execution.27
B. Accountability and Remedy
10. Persons whose rights have been violated have
the right to a full and effective remedy.28 Family
members of victims of unlawful death have the
right to equal and effective access to justice; to
adequate, effective and prompt reparation;29 to
recognition of their status before the law;30 and to
have access to relevant information concerning the
violations and relevant accountability mechanisms.
Full reparation includes restitution, compensation,
rehabilitation, guarantees of non-repetition, and
satisfaction.31 Satisfaction includes government
verification of the facts and public disclosure of
the truth, an accurate accounting for of the legal
violations, sanctions against those responsible for
the violations, and the search for the disappeared
and for the bodies of those killed.32
4
11. Family members have the right to seek and obtain
information on the causes of a killing and to
learn the truth about the circumstances, events
and causes that led to it.33 In cases of potentially
unlawful death, families have the right, at a
minimum, to information about the circumstances,
location and condition of the remains and, insofar
as it has been determined, the cause and manner
of death.
12. In potential cases of enforced disappearance,
under the International Convention for the
Protection of All Persons from Enforced
Disappearance families have the right, at a
minimum, to information about the authorities
responsible for the disappearance and
deprivation of liberty, the dates and place of the
disappearance, and any transfers, and the victim’s
23
See, e.g., ECtHR, McCann and others v. United Kingdom, Judgment (Grand Chamber), 27 September 1995, para. 161; IACtHR, Montero-Aranguren and
others (Detention Center of Catia) v. Venezuela, Judgment, 5 July 2006, para. 66; African Commission on Human and Peoples’ Rights (ACHPR), General
Comment No. 3 on the Right to Life, November 2015, paras. 2, 15; Human Rights Committee, General Comment No. 31, paras. 15 and 18.
24
UN Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, UN doc. E/
CN.4/2005/102/Add.1, 8 February 2005, Principle 1.
25
See, e.g., Human Rights Committee, General Comment No. 31, para. 18.
26
Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions to the General Assembly, UN doc. A/70/304; Preamble to the UN
Basic Principles and Guidelines on the Right to Remedy and Reparation.
27
See, e.g., IACtHR, La Cantuta v. Peru, Judgment, 29 November 2006, para. 160.
28
See UN Basic Principles and Guidelines on the Right to Remedy and Reparation; Updated Set of Principles for the Protection and Promotion of Human Rights
through Action to Combat Impunity, Principle 4; Art. 2(3), ICCPR.
29
Reparation includes restitution, compensation, rehabilitation, guarantees of non-repetition, and satisfaction. See, e.g., Working group on Enforced or Involuntary Disappearances (WGEID), General Comment on Article 19 of the Declaration on the Protection of All Persons from Enforced Disappearance, UN doc.
E/CN.4/1998/43, paras. 68–75; and Report of the Working Group on Enforced or Involuntary Disappearances, UN doc. A/HRC/22/45, 28 January
2013, paras. 46–68.
30
Art. 24(6) ICPED obliges States Parties to adopt adequate measures (for example, issuing certificates of absence due to enforced disappearance) to regulate
the legal status of a disappeared person and his/her relatives in fields such as social welfare, family law and property rights. See WGEID, General comment on the right to recognition as a person before the law in the context of enforced disappearances, General Comment No. 11, 2011, in UN doc. A/
HRC/19/58/Rev.1 (2012), para. 42.
31
See, e.g., Human Righ ts Committee, General Comment No. 31, op. cit., paras. 15–17 and 19; Art. 24, ICPED; and Committee on Enforced Disappearance, Yrusta v. Argentina, Views (Comm. No. 1/2013), April 2016.
32
See UN Basic Principles and Guidelines on the Right to Remedy and Reparation, para. 22.
33
See, e.g., UN General Assembly Resolution 68/165, adopted on 18 December 2013; ICPED Arts. 12 and 24(2); WGEID, General Comment on the right
to the truth in relation to enforced disappearance, General Comment No. 10, in Report of the Working Group on Enforced or Involuntary Disappearances, UN
doc. A/HRC/16/48, 26 January 2011, para. 39. Inter-American Commission on Human Rights (IACHR), Report on the Demobilization Process in Colombia,
OEA/Ser.L/V/II.120, Doc. 60, December 13, 2004, para. 18, citing, inter alia, IACHR, Annual Report of the Inter-American Commission on Human Rights
1985-86, OEA/Ser.L/V/II.68, Doc. 8 rev. 1, 26 September 1986, chap. V.
The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016)
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